Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Meetings Decision
At issue in this appeal is whether the City of Berea Board of Adjustment violated the Open Meetings Act during its January 27, 2010, meeting; however, John Guthrie's May 14, 2010, "complaint pursuant to KRS 61.846(1)," which references both "KRS 61.805 to 61.850" and "KRS 61.872 to 61.884" generally, and indicates that "egregious violations" of both the Open Meetings and Open Records Acts occurred, fails to actually state a claim which is justiciable under the Open Meetings Act. To remedy the unspecified violations, Mr. Guthrie proposed that "the item of 'New Business' on the meeting's agenda . . . be declared 'NULL AND VOID'," 1 and that the Attorney General "order the Codes Enforcement Office to enforce the 'final order' of the Codes Enforcement Board (dated June 23, 2008)" pursuant to sections of the City's "Land Management and Development Ordinance, " and related statutory provisions, which can be neither interpreted nor enforced in this forum.
As James T. Gilbert, counsel for the City of Berea, correctly argued in responding to Mr. Guthrie's appeal, "the Attorney General is without legal authority to order the City of Berea to 'enforce' Code Enforcement Board orders." This office has long recognized that its authority under KRS 61.846(2) is narrowly defined to include only "review[ing] the complaint and denial and issu[ing] within ten (10) [business] days, . . . a written decision stating whether the agency violated the provisions of [the Open Meetings Act] ." In sum, this office is "not empowered to adjudicate a dispute relating to interpretation of, and compliance with, a public agency's bylaws [or city ordinances, unrelated statutory provisions, etc.]" in the context of an Open Meetings Appeal. 02-OMD-22, p. 4. However, based upon the following, this office disagrees with Mr. Gilbert's assertion that Mr. Guthrie "is not within the provisions of KRS 61.880 because [he] is not requesting any public records that have been withheld or denied," and finds that the Board violated the Open Records Act, specifically KRS 61.880(1).
Attached to Mr. Guthrie's May 28, 2010, appeal is a copy of his April 29, 2010, request for public records, namely, the "Berea Board of Adjustment's regular meeting dates[,] beginning with January 1, 2010 through December 31, 2010," and, "if possible, . . . a list of the current board members . . . with their term expiration dates." 2 Mr. Guthrie apparently did not receive any response to his written request. On appeal, the City offers no explanation for this omission despite characterizing his appeal exclusively as the "Open Records Appeal referenced above."
In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency " shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. " (Emphasis added.) The City had two opportunities to discharge its duty under KRS 61.880(1); first, upon receiving Mr. Guthrie's request, and second, upon receiving the notification of his appeal from this office. It is undisputed that the City has not issued a written response to Mr. Guthrie's request, and this constitutes a clear violation of KRS 61.880(1). Public agencies such as the City are not permitted to elect a course of inaction; rather, pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." 3 As the Attorney General has consistently recognized, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5.
Pursuant to KRS 61.820, which Mr. Guthrie cited in his request, "all public agencies shall provide for a schedule of regular meetings by ordinance, order, resolution, bylaws, or by whatever other means may be required for the conduct of business of that public agency. The schedule of regular meetings shall be made available to the public." As in 03-OMD-021, this office finds that the agency "has not substantiated that it has adopted a schedule of regular meetings and made it available to the public," and "thus it has failed to demonstrate that [it acted] in compliance with the requirements of KRS 61.820." Id., p. 4. With regard to Mr. Guthrie's request for a "list of the current board members . . . with their term expiration dates," the City has again remained silent. Although this office has long recognized "that a public agency is not obligated to compile a list or create a record to satisfy an open records request," 02-ORD-165, p. 4 (citation omitted), the City has not raised this argument. In addition, a copy of the minutes of the Board's January 27 meeting (or any meeting) would presumably contain the names of the Board members if not expiration dates of their terms. 4 To the extent the City possesses any records which might contain the requested information, those records must be produced for Mr. Guthrie's inspection. 5 "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection [as opposed to copies prior to inspection] , during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis).
Based upon the foregoing, this office finds that Mr. Guthrie's complaint failed to state circumstances which constituted an alleged violation of the Open Meetings Act per KRS 61.846(1); however, the City violated the Open Records Act, specifically KRS 61.880(1), in failing to issue a written response to Mr. Guthrie's April 29 request for a copy of the Board of Adjustment's 2010 schedule of regular meetings, which must be made available per KRS 61.820.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.846(4)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
John R. GuthriePaul E. DeanJames T. Gilbert
Footnotes
Footnotes
1 "[T]he Attorney General cannot void actions taken or impose penalties for violations of the Open Meetings Act, only the circuit court can do that." 97-OMD-90, p. 4. See KRS 61.848(5) and (6).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
2 Mr. Guthrie also included a copy of his February 12, 2010, written request for a copy of the "video/audio recording" of the January 27 meeting; however, a copy of this request was attached to his previous appeal, identified as Log No. 201000104, in addition to his February 1 request for the same record. Also enclosed with Mr. Guthrie's appeal was a copy of his May 8, 2010, request which, in relevant part, again sought "an unedited recording of" the January 27 meeting, "and a transcript of said recording. " Because any issues concerning the accessibility of the subject recording were addressed in 10-ORD-068, the decision resolving Log No. 201000104, this decision only addresses the April 29 request.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
3 Specifically, KRS 61.880(1) provides that a public agency's response "shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. "
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
4 In 10-ORD-068 (John R. Guthrie/City of Berea), this office noted that the City had "offered to provide Mr. Guthrie with a copy of the minutes of the meeting after they were approved." If the City has not already done so, it should now.
5 In accordance with KRS 61.872(3), and 61.874(1) and (3), the City may require advance payment of a reasonable copying fee (.10 per copy) before providing copies.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -